The Federal False Claims Act ("FCA") imposes civil liability for presenting a false claim to the government for payment. The Federal Anti-Kickback Statue ("AKS") prohibits medical providers from making referrals in return for "remuneration." In a recent decision by the Sixth Court of Appeals, the Court found that a hospital's decision not to hire an ophthalmologist in return for a commitment for continued referrals from another ophthalmologist did not constitute prohibited "remuneration" in violation of the AKS.¹ The ruling contains important findings on the definition of remuneration and on the causation standard to be applied in FCA cases in this jurisdiction, rejecting the Third Circuit's reasoning and joining in the Eighth Circuit's analysis.

The case involved a two-physician ophthalmologist practice in Marshall, Michigan, and Oaklawn Hospital, located in the same town. For a number of years, the practice and hospital routinely referred patients back and forth as the only local option for each. After friction developed between the practice's physician owner, Dr. Darren Hathaway, and physician employee of the practice, Dr. Shannon Martin, Dr. Hathaway began negotiations to join another practice in Lansing, Michigan, which ultimately did not include Dr. Martin. As a result, Dr. Martin began employment negotiations with Oaklawn. After learning about these negotiations, Dr. Hathaway approached Oaklawn's Board to request the hospital not hire Dr. Martin due to his concern...

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